As a libertarian, the less government is involved in marriage, the better. So yay!
But Scalia's argument is the stronger here. And there will be a time when this kind of reasoning is used in a way that will not be good.
Historical sidebar: back in the 90s, there was a rash of state governments passing "defense of marriage" laws. There was one at the federal level. At the time, the best argument I heard against such laws was that they were idiotic: there's no way the federal court system would start mucking around with marriage.
As I said, today's decision is a good thing. But I am very disturbed that many very intelligent people thought this was none of the court's business. For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.
Scalia's argument is not new and goes back to before the civil rights era. It was wrong-headed then and it's wrong-headed now.
> there's no way the federal court system would start mucking around with marriage.
And maybe if fed and state governments hadn't felt the need to placate the angry mobs by passing super discriminatory laws, the court never would have had the demonstrable harm necessary to step in and make a ruling.
> For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.
That's kind of the hitch though, isn't it? We wouldn't even need the courts if there weren't always fairly smart people (smart enough to get elected, at least) who disagree that minorities should have Rights.
Court decisions to confer Rights are tricky because the procedural question is exactly the substantive question -- if Gay people have a Right to marry, then the court has no choice but to step in. And if they don't, then the court has no choice but to stay hand off. And whether they have that Right depends, basically, on your opinion. As Kennedy pointed out, the due process and equal protection clauses were written in an intentionally non-explicit way.
Edit: For example, it would be absolutely insane today for us to imagine the equal protection clause not providing a basis for banning discrimination based on race. Obviously, either our constitution forbids that practice under the Fourteenth Amendment or else our Constitution is seriously, seriously flawed. Right? Right. Now, go read the Plessy v. Ferguson decision.
There is a clear distinction between granting rights and denying rights. The Supreme Court should not be actively denying rights to people, unless it is clearly called out in the Constitution or state law. This is not one of those examples.
And thus far this court has been fairly consistent in granting rights broadly. This ruling stands in that tradition, but this time in a direction ideologically opposed to the right.
But Scalia's argument is the stronger here. And there will be a time when this kind of reasoning is used in a way that will not be good.
Historical sidebar: back in the 90s, there was a rash of state governments passing "defense of marriage" laws. There was one at the federal level. At the time, the best argument I heard against such laws was that they were idiotic: there's no way the federal court system would start mucking around with marriage.
As I said, today's decision is a good thing. But I am very disturbed that many very intelligent people thought this was none of the court's business. For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.